Kibaki ought to be impeached for not arresting the Sudanese leader

Radio Tanzania used to run a radio programme on political education. In one of the episodes, a story is told of a youth selling groundnuts in a market. A thief in a beautiful suit stole from a shop run by a South Asian African in the vicinity of the market.

As the owner of the shop cried and shouted, “chor/chor/thief/thief,” the public turned on the innocent youth and beat him up while the well-dressed thief majestically walked away to safety.

There is a moral to this story in the events of August 27, 2010. In failing to arrest Sudanese President Omar al-Bashir while in Kenya, and in arresting those who demonstrated against his presence, the Grand Coalition Government has told Kenyans a story.

Regardless of the promulgation of the new Constitution, it is business as usual. There is no doubt Kenya violated Article 2(6) of the new Constitution by failing to arrest the president of Sudan.

Instead, Kenyan police arrested Mr Peter Muli and Mr Francis Kihara, two Bunge la Mwananchi activists who took part in a demonstration urging al-Bashir’s arrest.

Both Mr Muli and Mr Kihara were exercising their rights under the new Bill of Rights. They were locked up in Central Police Station and were released after other activists and reformers in government condemned the arrests.

The police, however, told the two activists that they would be charged in a court of law. It must be clear to all Kenyans that the first people who should be taken through a thorough education of the new Constitution, particularly the Bill of Rights, are our very own Kenyan police.

It is now clear that the Kenyan Government invited President al-Bashir to the promulgation celebrations. One wonders what the government wanted to prove by what was clearly a reckless political act.

The reasons that have been given by various government officials are simply a rationalisation of impunity on the part of some of the politicians and bureaucrats in the service of the old constitution.

Article 145 of the new Constitution provides that the president can be impeached for gross violations of the Constitution or any other law. Article 2 (6) provides for the country’s obligations under the Rome Statute, which is now part of our domestic law.

I am asking lawyers to ponder on this issue and make it a ground for testing the impeachment provisions of the Constitution. I believe it is important for President Kibaki to internalise his powers under the new Constitution as well as his obligations and responsibilities.

He should have stopped to think about both before inviting al-Bashir to Kenya. I have already called the invitation reckless as a political act. Surely, the timing of the invitation was unpatriotic. We were celebrating the new dawn towards a new Kenya.

The new Constitution signalled the end of impunity, violations of human rights, disrespect for the rule of law, and the parting of ways with dictators the world over. The African Union should not tell Kenyans to associate with dictators who have murdered, and continue to murder, their citizens. Kenyan leaders, both politicians and bureaucrats have no right to rubbish and subvert the will of Kenyans as clearly demonstrated in our voting in the new Constitution.

If it is true that the President invited President al-Bashir on the recommendation of the minister for Foreign Affairs, Mr Moses Wetangula, the Head of Civil Service, Mr Francis Muthaura, and permanent secretaries in Foreign Affairs and Internal Security, then the minister and these bureaucrats should be subjected to the implementation of Chapter 6 of the new Constitution.

They are not the kind of leaders who should hold such high offices because they have violated some of the constitutional values. We now have a supreme law and we should invoke it to hold our leaders accountable, starting with the highest office in the land. The President should be seeking legal advice as soon as possible!

cabralpinto2009@gmail.com